Keith Moore vs BMW North America LLC et al

Case Number

22CV03224

Case Type

Hearing Date / Time

Fri, 05/09/2025 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons discussed herein, plaintiff’s motion to compel compliance with previous court orders and issue sanctions is granted in part and denied in part as follows:

1. BMW of North America, LLC, has failed to comply with previous court orders and shall provide further, verified, code-compliant, responses to Requests for Production of Documents, Set One, Nos. 1, 2, and 3, as well as produce any responsive documents, no later than May 23, 2025.
2. Issue Sanctions are denied.

 

Background:

On August 19, 2022, plaintiff Keith Moore (Moore) filed a complaint against defendants BMW North America, LLC (BMW) and Santa Barbara Auto Group (the Auto Group) alleging nine causes of action: (1) breach of the implied warranty of merchantability (Civil Code section 1794 (against BMW only); (2) breach of the implied warranty of fitness (Civil Code section 1794) (against BMW only); (3) breach of express warranty (Civil Code section 1794) (against BMW only); (4) violation of the Magnuson-Moss Warranty Act (against BMW only); (5) failure to promptly repurchase product (Civil Code section 1793.2, subd. (d)) (against BMW only); (6) failure to commence repairs within a reasonable time and to complete them within 30 days (Civil Code section 1794) (against BMW only); (7) violation of Civil Code section 1793.2, subdivision (a)(3) (against BMW only); (8) negligent repair (against the Auto Group only); and (9) concealment (against BMW only). As alleged in the complaint:

On March 19, 2023, Moore purchased a new 2021 BMW M8 Gran Coupe (the vehicle) manufactured, distributed, and sold by BMW. In connection with the purchase, Moore received an express written warranty (the warranty) under which BMW undertook to maintain the utility and performance of the vehicle or to provide compensation upon a failure in utility or performance for a specified period of time. The warranty further provides that in the event a defect developed with the vehicle during the warranty period, Moore could deliver the vehicle for repair to BMW’s representative and the vehicle would be repaired.

During the warranty period, safety defects developed with respect to the vehicle’s braking system (the braking defects). BMW had knowledge of the braking defects, and that the vehicle and other 2021 model BMW vehicles experienced symptoms relating to the braking defects, before the date Moore purchased the vehicle but concealed and failed to disclose the defective nature of the vehicle to Moore at the time of sale. Moore delivered the vehicle to the Auto Group, which is BMW’s authorized repair facility for warranty repairs. BMW and the Auto Group failed to repair the vehicle in conformance with the warranty, or to replace the vehicle or make restitution to Moore.

On September 26, 2022, BMW filed its answer to the complaint, generally denying its allegations and asserting twenty-three affirmative defenses.

On December 1, 2023, Moore filed a request for dismissal of the complaint, without prejudice, as to the Auto Group only.

Prior Discovery Matters:

On November 28, 2023, Moore filed four discovery motions: (1) a motion for an order compelling BMW to respond without objection to Moore’s set one form interrogatories (the FI); (2) a motion for an order compelling BMW to respond without objection to Moore’s set one special interrogatories (the SI); (3) a motion for an order compelling BMW to respond without objection to Moore’s set one requests for production (the RFP); and (4) a motion for an order deeming Moore’s set one requests for admission (the RFA) admitted (collectively, the prior motions to compel). The prior motions to compel, which were belatedly opposed by BMW, were brought on the grounds that BMW failed to serve responses to the FI, SI, RFP, and RFA (collectively, the discovery requests) by the September 28, 2023, extended deadline granted by Moore, or at any time after.

On February 16, 2024, the Court granted the motions to compel and ordered BMW to provide verified responses to the discovery requests, without objections, no later than March 7, 2024. (Feb. 16, 2024, Minute Order.) The Court denied the request of Moore to have the matters set forth in the RFA deemed admitted. (Ibid.) The Court’s February 16, 2024, order was made without prejudice to BMW’s ability to file a properly supported motion for relief from its waiver of objections provided any such motion was filed and served prior to March 7, 2024.

On March 6, 2024, BMW filed a motion for relief from the Court’s February 16, 2024, order on the prior motions to compel, which was opposed by Moore. In the motion for relief, BMW contended that it had served responses to the discovery requests which were in substantial compliance with applicable discovery statutes, and that BMW’s failure to timely serve the responses resulted from a miscommunication and inadvertent miscalendaring of the response date, given that counsel erroneously believed that a second extension of time to respond had been granted by Moore.

On May 17, 2024, the Court granted the March 6, 2024, motion of BMW for relief from the February 16, 2024, order, relieving BMW from its waiver of objections to the discovery requests. (May 17, 2024, Minute Order.) Further, the Court deemed May 17, 2024, as that date on which responses to the discovery requests were provided by BMW for purposes of determining the time within which Moore must file any motion(s) to compel further responses to the discovery requests.

Moore’s July 1, 2024, Motions:

On July 1, 2024, Moore filed four motions: (1) a motion for an order compelling BMW to provide further responses, without objections, to RFP nos. 1 through 12 (the RFP motion); (2) a motion for an order compelling BMW to provide further responses, without objections, to SI nos. 1 through 12 (the SI motion); (3) a motion for an order compelling BMW to provide further responses, without objections, to RFA nos. 1 through 3 (the RFA motion); and (4) a motion for an order compelling BMW to provide further responses without objections, to FI no. 17.1 (the FI motion).

On September 20, 2024, the motion for an order compelling further responses to RFP nos. 1 through 12 was granted, the motion to compel further responses to SI nos. 2 through 12 was granted, the motion to compel further response to RFAs was denied, and the motion to compel further responses to FI no. 17.1 was granted.

Moore’s Present Motion:

Arguing that BMW continues to be in noncompliance with the February 16, 2024, and September 20, 2024, orders, Moore now moves to compel compliance with those orders. Specifically, Moore argues that BMW did not provide verifications for its original responses to RFAs, SIs, or RFPs. (Motion, p. 2, ll. 12-17.) Moore further argues that BMW failed to timely serve amended responses to RFPs “Nos. 2, and then 1, 3 through 12, and failed to serve any documents in response.” (Motion, p. 2, ll. 25-27.) Further in the demurrer, Moore claims that BMW failed to serve verified amended responses to RFP “Nos. 1-3 and 4-12.” (Motion, p. 6, ll. 20-23.) To make matters even more confusing, by way of his Separate Statement, Moore only includes RFP nos. 1, 2, and 3. Moore seeks issue sanctions establishing: (1) The alleged brake issue was covered under warranty, and (2) BMW knew through its warranty claims database, that its 2021 BMW M8 vehicles, including Moore’s vehicle, suffers from a brake defect which BMW knew was unrepairable.

On April 28, 2025, BMW filed its opposition to the motion arguing that it is in compliance with the court’s prior orders.

Analysis:

Moore brings the present motion pursuant to: (1) Code of Civil Procedure section 2023.030, which permits monetary, issue, evidence, or terminating sanctions for misuse of the discovery process; and (2) Code of Civil Procedure section 2031.300, which allows a party to compel responses to RFPs and impose monetary sanctions for failure to provide a timely response.

            Verifications

As noted above, Moore argues that BMW failed to serve verifications to set one of the RFPs, RFAs, and SIs. Although explained in a rather convoluted manner, the argument, essentially, is that BMW provided different verifications than those that were originally sent to Moore’s prior counsel, and contained signatures that were not on the original verifications. Moore claims that BMW admitted that the signatures were added, and the verifications were back dated. BMW subsequently reserved the verifications with the proper dates of verification.

In opposition to this aspect of Moore’s motion, BMW provides the declaration of BMW’s Customer Support Analyst Michael McCaffrey. McCaffery declares: (1) On September 25, 2024, he reviewed draft responses to the initial discovery and approved them for verification, but, due to a clerical error or oversight, he did not sign all the verifications (McCaffrey Decl., ¶ 4); and (2) On April 7, 2025, he modified all of the verifications for BMW’s initial responses by affixing a current date. (McCaffrey Decl., ¶ 5.)

It is unclear what Moore is attempting to accomplish with his arguments relative to the verifications, except as it possibly pertains to sanctions for abuse of the discovery process. All the evidence presented, even by Moore, shows that, while there were some issues with producing them, Moore now possesses properly executed verifications for the discovery.

Further, this court, on May 17, 2024, acknowledged that BMW has provided verified responses sufficient to meet the standard of being in substantial compliance with its duty to respond.

The portion of the motion pertaining to the verifications is moot. It was, in fact, moot at least 10-days prior to the filing of the motion.

            Requests for Production of Documents

As noted above, Moore is unclear regarding which specific RFP’s he takes issue with. However, his separate statement only addresses requests nos. 1 through 3.

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c).)

As requests nos. 1 through 3 are the only requests included in the separate statement, those will be the only requests addressed.

A party responding to a demand for production of documents must respond, separately, to each request by either “[a] statement that the party will comply with the particular demand”, “[a] representation that the party lacks the ability to comply with the demand”, or an objection. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(3).)

Code of Civil Procedure section 2031.220 requires: “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320. subd. (a).)

Request No. 1 seeks: “All DOCUMENTS relating to or referring to the SUBJECT VEHICLE.”

BMW’s court ordered response is: “Responding Party will comply in whole by producing all documents currently in its possession, custody and/or control which may have been obtained from third parties.”

Request No. 2 seeks: “All DOCUMENTS involving any warranty claims involving the same year make and model as the SUBJECT VEHICLE for the same alleged loud brake defect.”

BMW’s court ordered response is: “To the extent it understands the Request, Responding Party is conducting a diligent search and making a reasonable inquiry to provide a list of complaints that by owners of BMW 2021 M8 Gran Coupe regarding any of the complaints that the subject vehicle was presented to an authorized repair facility for repair during the warranty period by using search terms derived from the relevant WVI and repair orders. Should such information exist, Responding Party will produce all a table of the relevant currently in its possession, custody and/or control.”

BMW provided proof it provided a verified second amended response to request no. 2, following the filing of the present motion, which states: “Responding Party has conducted a diligent search and reasonable inquiry and Responding Party is unable to comply with this request because the search for warranty claims involving the same year make and model as the SUBJECT VEHICLE for ‘loud brake defect” and “loud brake’ returned no results.”

Request No. 3 seeks: “All DOCUMENTS involving any communications with dealerships about the SUBJECT VEHICLE.”

BMW’s court ordered response is: “Responding Party will comply in whole by producing all documents currently in its possession, custody and/or control which may have been obtained from third parties.”

[Note: While Moore has provided 21 exhibits in support of its motion, he failed to provide BMW’s amended responses to the RFP’s, which is the most important document for evaluation of the motion. However, BMW did provide the responses as Exhibit B to the declaration of counsel.]

            Request No. 2

Because there is a second amended response to request no. 2, it will be addressed first. The response is not code compliant. As set forth above, the requirements for responding to RFP’s are set forth in Code of Civil Procedure section 2031.210, et seq.

Moore’s argument clearly implies that BMW is being untruthful about the search returning no results. This is pure speculation, and the court will not accuse BMW of lying in verified discovery responses. The court has no means of accurately knowing whether responsive documents exist. However,  BMW did fail to state “whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” BMW also failed to provide the other information required by Code of Civil Procedure section 2031.230.

BMW has not complied with the court order that it provide code compliant responses. BMW will be ordered to obey the order of the court and provide a further verified, and code compliant, response to RFP no. 2. Sanctions will be addressed below.

            Requests Nos. 1 and 3

With respect to requests nos. 1 and 3, BMW did indicate that all responsive documents would be produced. Moore argues, and BMW does not dispute, that no responsive documents were produced.

BMW fails to directly address Moore’s arguments, and instead argues that it “produced documents responsive to Plaintiff’s RFPs if in fact it had any possession, custody or control.” (Opposition, p. 15, ll. 23-24.) BMW falls short of claiming to have conducted a diligent search and reasonable inquiry and produced all responsive documents. BMW’s failure specify that all responsive documents have been produced implies that more likely exist.

BMW will be ordered to provide further, code compliant, responses that make it clear if it has conducted a diligent search and a reasonable inquiry, and if there are any additional responsive documents. The responses are, as they stand now, evasive. Sanctions will be addressed below.

As another observation: Moore’s argument regarding Code of Civil Procedure section 2031.280, subdivision (a), misstates the code section’s meaning. The section provides: “Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”

By its plain language, and as supported by case law, the requirement pertains to actual documents produced. It does not in any way require that a responding party identify the documents in the formal response to the RFPs.

            Sanctions

As noted, Moore seeks issue sanctions. However, as a first sanction, issue sanctions would be inappropriate.

California discovery law authorizes a range of penalties for a party’s misuses of the discovery process, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. (§§ 2023.010, 2023.030; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes).)

“ ‘[S]anctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ ” ” (Doppes, supra, 174 Cal.App.4th at p. 992.) The discovery statutes thus “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Ibid.)

“Discovery sanctions serve to remedy the harm caused to the party suffering the discovery misconduct. [Citation.] Because discovery sanctions are not designed to punish, “ ‘ “sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party’s misconduct.” ’ ” [Citation.]” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 74.)

No previous sanctions have been ordered against BMW for its failure to abide by the discovery statutes. Monetary sanctions would be the first sanctions imposed. Had they been properly requested in conjunction with the present motion, they would have been awarded. However, Moore has not requested them and has not provided any information that apprises the court of the time Moore expended in bringing the present motion. As such, monetary sanctions cannot be ordered. The issue sanctions requested by Moore are too harsh as a first sanction and will not be ordered at this time.